Tuesday, November 29, 2011

The Ohio Supreme Court has issued a new comprehensive writing/citation manual to be applied in its opinions starting Jan. 1, 2012. The new guide replaces the original "Manual of Citations",issued in 1985, the May 2002 "interim version", and a subsequent later revision.“Divided into three parts,” the Court’s announcement says, “the new manual contains guidance on proper citation format for opinions, cases, and statutes in Supreme Court opinions; proper style for Supreme Court opinions; and a new section with examples on how to structure an opinion.”

Several significant changes are noted, including:

The federal circuits are now identified using “Cir.,” e.g., 6th Cir. instead of C.A.6.

Federal statutes are now cited using “U.S.C.,” e.g., 42 U.S.C. 1982 instead of Section 1982, Title 42, U.S. Code.

Wednesday, November 23, 2011

The Cleveland Plain Dealer, last weekend, carried a story about former Summit County prosecutor Lynn Slaby, who is now a state representative, introducing a bill last month by at the urging of the Ohio Prosecuting Attorneys Association that would change Ohio law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury. [See text and analysis of HB 265, introduced June 14, 2011]

The Ohio Judicial Conference, which opposes the bill, notes that its recent impact statement that “Ohio is one of twenty-one states granting criminal defendants the right to choose whether they will be tried by jury or by the judge, and does not require the consent of the prosecuting attorney to waive jury trials. The remaining 29 states, the Federal system, and Washington D.C. require the consent of the prosecuting attorney in order to waive trial by jury.

The Judicial Conference’s impact statement also briefs some relevant case history, including the Ohio Supreme Court’s upholding the validity of then General Code 13442-4 that in all criminal cases pending in state courts of record in this state, the defendant shall have the right to trial by jury, and may, if s/he so elects, be tried by the court without a jury… [ State v. Smith, 123 O St. 237 (1931)] [General Code 13442-4 is now ORC § 2945.05; See also §2945.06 with respect to “Procedures for trial by court" ] The Judicial Conference also addressed the federal aspect, noting that in Singer v. United States, the U.S. Supreme Court examined whether a criminal defendant in a federal criminal case has an unconditional constitutional right to a trial by jury, and whether there was also a correlative constitutional right for a criminal defendant to have is/her case decided by the judge alone if s/ he considers such a trial to be to her/ his advantage. [ Singer v. US, 380 US 24(1965)]. The Court held that there is no constitutional or federally recognized right to a criminal trial before a judge sitting alone, and, citing Patton v. United States, reaffirmed their previous holding that a defendant can waive the right to trial by jury. [ Patton v. US 281 US 276(1930)].

A Newark Advocate article last week describes the Ohio Supreme Court’s decision to review whether “requiring a 17-year-old boy to register as a sex offender for touching girls' breasts violates the constitutional protection against cruel and unusual punishment.In the case pursuant a 17-year-old boy was found delinquent of sexual imposition and disorderly conduct, both the equivalent of misdemeanor offenses back in July 2010, according to the article. He had been expelled from high school, but was then also required to register as a Tier I sex offender for the next 15 years. His attorney thinks that’s “cruel & unusual punishment.” [ Memorandum in support ]

The Advocate’s article indicated that this case, from Licking County, is “joining a number of other cases disputing how sex offender registration is applied to juveniles here in Ohio.” The Court heard arguments on an Athens County case last February addressing the application of In re Smith (2008-1624), In re Adrian (2009-0189); and State v. Bodyke (2008-2502) as they may apply to juveniles and the “public registry-qualified juvenile offender registrant” (PRQJOR) provisions of Senate Bill 10, now codified at ORC § 2152.86. The Athens County case will set guidelines for the state’s future considerations. (Court's Acceptance)

In way of review, Bodyke, in 2010, found that portions of Senate Bill 10 (Ohio’s “Adam Walsh Act”), authorizing the attorney general to reclassify sex offenders, were unconstitutional. State v. Williams, this past summer, extended that to retroactive provisions of registration and community notification. In re Smithand Adrian had both dealt with retroactivity and were remanded for consideration in light of Williams.

Tuesday, November 22, 2011

Two major initiatives were announced by the Ohio Supreme Court and Ohio Attorney General last week.The first was Ohio Supreme Court Justice Evelyn Stratton and Attorney General Mike DeWine’s announcing that the Court’s 10-year old Advisory Committee on Mental Illness and the Courts (ACMIC) is being evolved into a new, combined-effort, Task Force on Criminal Justice and Mental Illness, allowing expansion into areas beyond everyday realm of the court system. ( Columbus Dispatch)

The ACMIC, was initially tasked with developing solutions for the “revolving door issue of persons with mental illness trapped in the criminal justice system,” the Attorney General’s press release stated. “In the past 10 years, ACMIC has helped establish 37 mental health courts, promoted the training of 4,580 crisis-intervention team officers in 76 of 88 counties, made recommendations for changes to Medicaid, and advocated for a new Juvenile Competency Statute.” (See ACMIC’s web page for much more)

Attorney General DeWine and Justice Stratton also collaborated on the Mentally Ill Offender Treatment and Crime Reduction Act (MIOTCRA) at the national level when Attorney General DeWine was a U.S. senator. The MIOTCRA program helps identify, treat and supervise persons with mental illness who otherwise would cycle in and out of the justice system.

Second was the Attorney General’s Office’s announcement of “a bold new ‘Crimes Against Children Initiative,’ comprehensive plan to protect Ohio's children from sexual predators.” ( Here )

That new undertaking creates a "Crimes Against Children Unit" at the Bureau of Criminal Investigation (BCI), which will investigate child predator cases and, along with the Ohio Peace Officer Training Academy (OPOTA) provide specialized training to Ohio law enforcement.

Two attorneys within the Attorney General's Special Prosecutions Unit will address crimes against children exclusively, thereby providing valuable resources to local officials who will be able to tap their assistance in the prosecution of predator cases.

Finally, an internal “rapid response team” addressing issues spawn from sex crimes committed against children will be put together. The team will include child victim advocates, special prosecutors, and agents from BCI. The Rapid Response Team will respond to victims in the field, partnering with local medical experts as needed.

The Cleveland Plain Dealer had an article this past weekend about a lawsuit filed by a 41-year-old teacher's aide against First American Financial Corp., which alleges her $455.53 title insurance purchase in 2006 resulted from an illegal kickback scheme, which has evolved into a far-reaching consumer-rights dispute that the U.S. Supreme Court will be hearing on Nov. 28.

In 2006, Denise Edwards’ title company had agreed to steer almost all its title insurance business to First American Financial Corp. in exchange for a $2 million payment years before that bought a minority share in the agency. First American contends plaintiff has no legal standing to sue it for violating the Real Estate Settlement Procedures Act (RESPA)of 1974, in that the insurance steering didn't hurt Edwards because all title insurance policies cost the same amount of money in Ohio when she bought her three-bedroom house. Legal experts, the article says, say a decision against that plaintiff could weaken a broad range of consumer protection statutes, curtail class-action suits, and have implications for everything from copyright to credit reporting law, where financial harm to the aggrieved can be hard to prove.Briefs supporting First American argue that allowing lawsuits by people who haven't suffered damages encourages potentially bankrupting class-action cases (i.e. Here). The Federal government, consumer groups and attorneys general from 11 states have filed legal briefs that take Edwards' side, saying that inside dealing of the sort Edwards experienced damages consumers and that lawsuits like hers are needed to ensure that companies comply with consumer protection laws.

ScotusBlog posted a review of the case ( Here) last Friday, and has additional information and filings (Here)

Friday, November 04, 2011

Last July the Ohio Supreme Court in State v. Williams held that "imposing enhanced sex offender registration and community notification requirements included in the 2007 Ohio Adam Walsh Act (AWA) against defendants whose crimes were committed before the effective date of that law violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws." (See Court summary)

In Williams, prior to his sentencing hearing, Williams entered a motion asking the trial court to sentence him under the Megan's Law sex offender classification scheme that was in effect on the date of his offense, rather than under the AWA classification scheme. The trial court overruled Williams' motion. Williams appealed, arguing that the retroactive application of the AWA registration requirements to his offense violated the ex post facto, due process and double jeopardy clauses of the U.S. Constitution and the retroactivity clause of the Ohio Constitution. The 12th District Court of Appeals had affirmed the trial court's classification of Williams under the AWA as constitutional. Ohio Attorney General Mike DeWine and Warren County Prosecutor David Fornshell petitioned the Court for a reconsideration and/or clarification of its decision that same week. That was unceremoniously denied in September. ( Ohio’s Megan Law )( Adam Walsh version )

But we're not done with sex offender retroactivity issues here in Ohio yet; the Court heard yet another appeal of this same nature last Tuesday.The case this time was State v. Palmer, in which a 46-year old man was convicted of sexual battery in 1995, served out his sentence and was released before Ohio's first sex offender registration statute, Megan's Law, went into effect, but is still being required to register as a sex offender.

Palmer's position is that "At the time of his sentencing, Ohio's sexual offender registration system was the law created by the General Assembly when it enacted Ohio's version of Megan's Law in 1996. Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2601. Megan's Law provided for offender registration, classification, and community notification. But under that law, 'a person whose prison term for a sexually oriented offense was completed before July 1, 1997, is not required to register under R.C. 2950.04(A)(1)(a) or periodically verify a current address under R.C. 2950.06(A)[.]'"State v. Champion, 106 Ohio St.3d 120, 2005-Ohio-4098 at 113…. He completed his sentence before July 1, 1997, and so had no duty to register or verify his address under that earlier legislation"

The State's opposing view is that "The unqualified language of R.C. 2950.04(A)(2) applies the registration duty to all offenders who were convicted of sexually oriented offenses, regardless of when the offense or conviction occurred. Language in prior versions of the statute tying the registration duty to the date of the sentencing hearing or release from prison has been deleted, thereby rendering the holding of State v. Champion, 106 Ohio St.3d 120, 2005-Ohio-4098, inapposite…

"Insofar as appellant uses the first proposition of law to contend he has a separation of-powers defense to application of new law to him, appellant notably does not explain how he would fit within the holding of State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. Bodyke's separation-of-powers holding only applies when there has been a prior judicial classification, and appellant does not claim that any judge classified him previously. Indeed, his main argument has been that he was not even subject to Megan's Law, which is consistent with the view that no judge ever classified him. As appellant's conviction predated the effective date of Megan's Law, the sentencing judge made no reference to sex-offender registration status. Appellant simply does not benefit from Bodyke, and there is no prior judicial classification to 'reinstate.'"

The task force being convened by the Ohio Supreme Court to review the administration of Ohio's death penalty procedures received its charge from Supreme Court Chief Justice Maureen O'Connor yesterday morning. (Court's Announcement)

Chief Justice O'Connor reiterated during her opening remarks that "It should be made perfectly clear from the outset that this task force is not being asked to make a judgment on whether Ohio should or should not have the death penalty….. What you are being asked to do is provide to the Court and the state bar guidance on the current laws on the subject, the practices in other jurisdictions, the data, the costs, and many other aspects associated with the death penalty."

A cooperative effort between the Supreme Court and the Ohio State Bar Association, the Joint Task Force is chaired by retired Second District Court of Appeals Judge James A. Brogan and is made up of another 21 judges, prosecuting and defense attorneys, lawmakers, and law professors. (See Court's earlier announcement)

Judge Brogan in his remarks raised several initial questions for the group to whet their considerations, including whether the standard of proof in death penalty should be "beyond all doubt" instead of "beyond a reasonable doubt" as in other criminal cases.

Other discussions centered around prosecutorial discretion in seeking the death penalty and the extent to which the economics of a given county impacted how prosecutors made their decision, and whether discovery in death penalty cases should be made different than in ordinary criminal cases.

Additionally, Judge Brogan asked whether death penalty cases deemed disproportional to other cases that did not include the death penalty, should be set aside on appeal.

An Associate Press article yesterday also noted some of Ohio’s laws governing when and how the death penalty can be imposed, including alternate sentences and appeals issues, goes back to 1981.

Wednesday, November 02, 2011

Delaware County's law library brought an almost 110-year old case to our attention yesterday morning with respect to questions being raised with respect to Ohio HB 86 issues.

In re Kline, 70 Ohio St. 25 (1904) Where a statute defining a crime and prescribing the punishment is repealed before the final judgment in a prosecution there under, such repeal forecloses all further proceedings, unless a contrary intent appears in the repealing statute; but, when the repeal occurs after final judgment, it does not vacate or modify the judgment, or render it invalid.